Cheat Sheet: What in-house counsel need to know about “beauty bias”

Earlier this year several Boston media outlets reported that the Equal Employment Opportunity Commission (EEOC) had launched an investigation into Marylou’s Coffee, a popular East Coast coffee shop chain known for hiring attractive female baristas.

The case highlights a growing debate over “beauty bias” in hiring and employment, which has led various jurisdictions to ban discrimination based on factors such as height, weight or personal appearance. In InsideCounsel’s September issue, experts weigh in on the legal precedent involved and advise in-house attorneys on how to avoid charges of discrimination.

What are the facts?

Marylou’s Coffee is famous for hiring young, pretty female employees, clad in the chain’s signature pink shirts and black shorts. This spring, Marylou Sandry, owner of the eponymous coffee shop, accused the EEOC of leading a “witch hunt” to investigate her allegedly discriminatory hiring practices. According to published reports, the investigation was initiated by an EEOC commissioner, and not based on a complaint from an injured party.

This led some to speculate that the EEOC is actively trying to establish beauty bias as a form of discrimination. The agency adamantly denies that, and will not confirm or deny it is investigating Marylou’s. EEOC spokesperson Justine Lisser said the agency uses commissioner charges “within the scope of our enforcement authority and [does] not view them as tools to write new laws or expand existing ones.”

What is “beauty bias”?

Research has suggested that attractive people are more likely to be hired, typically earn higher salaries and are promoted more often.And standards of beauty are not as subjective as many believe, according to Deborah Rhode, Stanford University Law School professor and author of “The Beauty Bias: The Injustice of Appearance in Life and Law.” On the contrary, people—regardless of age, race or class—consistently rate certain individuals as attractive in studies.

What is the legal status of personal appearance?

Although the federal government does not recognize physical attractiveness (or unattractiveness) as a protected category, Michigan prohibits discrimination based on weight and height and Washington D.C. has made “personal appearance” a protected category under its anti-discrimination law.

What effect would federal recognition have on beauty bias cases? James McDonald, a partner at Fisher & Phillips, believes that the number of unjust discrimination claims would rise. But Deborah Rhode says that current laws have had little effect on the number of complaints, and that federal legislation would likely “raise consciousness and deter employers from making irrelevant characteristics the basis of decisions.”

What does the investigation mean for general counsel?

Past beauty bias cases have focused less on physical attractiveness and more on other aspects of a complainant’s appearance, namely age, race or sex. In Diaz v. Pan American World Airways, for example, the 5th Circuit ruled that the airline’s practice of hiring attractive young women as flight attendants was illegal, as being female was not a “bona fide occupational qualification” for being a flight attendant.

According to Carol Miaskoff, the EEOC’s assistant legal counsel for Title VII, there is often a fine line between discrimination based on attractiveness and discrimination based on other protected categories. “If someone grew up in a culture where they never saw people wearing certain religious garb, and therefore doesn’t find it attractive, he could slip into not hiring people wearing that clothing,” she notes. “And that would be exclusion on the basis of religion.”